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South Africa Justice For Sale: Criminals Pay To Avoid Trial, Records
Hundreds of thousands of people charged with crimes are paying their way out of criminal records in deals brokered by prosecutors in court hallways, according to a report/
. Out-of-court settlements in criminal cases have become commonplace in an attempt to clear court backlogs and save the state the cost of a trial.
Some 150,000 cases were settled in a year in the South Gauteng region, an overview by Africa Criminal Justice Reform (ACJR) showed.
But legal experts warn that the “perverse incentive” of money allows the rich to buy their way out of trial and conviction.
They argue that prosecutors and lawyers mediating criminal cases undermine justice and can lead to “manipulation and coercion.”
While mediation in civil cases is legislated, criminal case mediation is not. Prosecutors oversee settlements in “minor” cases like assault, property damage, and petty theft, where the accused agrees to terms for the case to be withdrawn.
One such case unfolded in Randburg magistrate’s court this week. Zandile Mbazima, an unemployed single mother, was assaulted after a minor car accident.
The prosecutor urged her to accept an out-of-court settlement.
The assault occurred in February, when Mbazima drove into the back of Candice Adams’s car.
Adams confronted Mbazima, pulling her out of her car and allegedly punching her repeatedly in the face.
The incident was filmed on a cellphone by a witness and Adams was later arrested.
The day before this week’s court appearance, Mbazima and her team met with Adams and her team to discuss a proposed settlement: a R12,500 payment for Mbazima, an apology from Adams and an undertaking to undergo a court-approved programme for anger management.
Mbazima said the senior prosecutor warned her that if she went ahead with the charges, there was no guarantee of a guilty verdict and that even if Adams was convicted, she was unlikely to be imprisoned and any fine would go to the state.
“Candice’s representative was very aggressive with me. I didn’t like it.
They kept saying I must make a decision and I told the prosecutor, ‘No, I am not ready,’” Mbazima said.
The case was postponed to July 17.
According to the Department of Justice, 52.9% of 44,495 regional court cases had been pending for over nine months by August last year.
Prof Lukas Muntingh, co-founder and project co-ordinator of Africa Criminal Justice Reform (ACJR), says there is no basis in law for alternative dispute resolution mechanisms (ADMRs) that “allow prosecutors to assume powers not provided to them by the constitution”. “
Money is a perverse incentive, letting perpetrators buy their way out. There’s no legal basis for conditional withdrawals.”
Another concern is the lack of a central register for mediated cases, enabling repeat offenders—like those in sexual harassment cases—to evade detection.
“The fact that it happens behind closed doors or in court hallways without judicial oversight completely undermines justice,” Muntingh said.
“There is no good message to the public about societal values.
The national director of public prosecutions says the victim is always given the reasons for the settlement, but I find that questionable.”
The office of the NDPP offers people the opportunity to complain if they feel their interests were not served by an ADMR decision.
“Money is a perverse incentive and allows perpetrators to buy their way out.
There is no legal basis for the state to withdraw charges conditionally,” Muntingh said.
In 2019/20, 146,993 ADR cases were recorded nationally, per the NPA’s last public report.
Of these, 103,821 were mediated in district courts and 2,174 in regional courts—where crimes carry sentences of three years or more.
Lisa Vetten, a gender violence specialist, warns that without regulation, mediation can be coercive.
“Without clear regulations you can end up with the weaker party (be it offender or victim) being coerced or bullied.
In practice, the ideal and reality are often very different,” Vetten said. Wits University’s Prof Peter Jordi adds that ADR systems leave room for manipulation and coercion.
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